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Records show hospital hid truth about surgery deaths

For years, Morton Plant Hospital kept a sordid secret locked away in its files.

Administrators feared that if it ever got out, Pinellas County's largest hospital would be devastated.

Now, a state appeals court has lifted the lid. And hospital officials are scrambling to explain memos that appear indefensible.

What the memos show is that Morton Plant administrators received warnings as far back as 1979 or 1980 that there were too many deaths among patients of a certain heart surgeon on their staff.

For several years, they did nothing. When the death toll grew, they ordered a study. But they didn't act on what it showed until June 1985, after a nurse put her outrage in writing.

The surgeon, Dr. Javier Ruiz, resigned under pressure and moved on to another local hospital. Even today, the names of five of his patients whose deaths were termed "potentially preventable" have never been made public.

Ruiz said he did nothing wrong, that the outcome would have been the same for his patients no matter who had held the knife. He said the state Department of Professional Regulation (DPR) cleared him of wrongdoing.

That's true. But the Tampa cardiac surgeon who reviewed the case for DPR, Dr. Victor J. Martinez, said he never saw the nurse's memo, or a university study of Ruiz's death rates. What he read were operative reports Ruiz wrote himself.

And Martinez said he knew Ruiz, although they weren't close friends. It is unusual for DPR to select a reviewer who knows the subject of an investigation.

DPR spokeswoman Cara Cannon said she can't check on the Ruiz inquiry because the agency destroyed the records.

Ruiz declined to answer a reporter's questions. But he did say he plans soon to resume open-heart surgery _ the same thing that got him in trouble before.

Morton Plant attorney Joseph Park said the hospital did its best in an impossible situation. Administrators couldn't act against Ruiz until they were absolutely sure they were right, he said, because they knew he would sue. And he did.

"The law of this state requires us to serve multiple masters. We have a heavy obligation to patients and a heavy obligation to the medical staff, by law," Park said. "The irony of this case is both of them ended up suing us."

The "multiple masters" argument doesn't impress Jeffrey O'Brien, attorney for the family of a patient who died. Hospital administrators, he said, sat on their hands for years when they could have acted.

Meanwhile, he said, "these innocent lambs were going in the hospital totally ignorant of the risks."

Ruiz came with the

best of references

Doctors always have called the shots at hospitals because they're the ones who bring in the paying patients. But Javier Ruiz was in a class by himself.

In 1975, he was ushered in as the first surgeon to head Morton Plant's new open-heart surgery program, the first in northern Pinellas County. He had the best of references, having worked under bypass pioneer Denton Cooley at the Texas Heart Institute.

"He came in as a superstar," Morton Plant spokesman Paul Gramblin said. "He was the key to the heart program."

Few people are willing to talk about what happened after that, because legal battles are still under way. This story is based on testimony and hospital records on file at the Pinellas County Courthouse and warehouse.

Court pleadings show the money Ruiz generated for Morton Plant was phenomenal. At one time, his attorney said, the surgeon earned more than $600,000 a year for himself and millions for the hospital.

For two years, Ruiz was the only surgeon in the open-heart program. Soon, other surgeons arrived, and the number gradually grew to 10.

Ruiz was unfailingly charming to patients. Behind the scenes, though, he was struggling to pass the examinations certifying his competence in cardiovascular surgery.

In 1976, and again in 1978, Ruiz took the exam and failed, according to his own testimony.

But it was unthinkable to question the competence of the founder of the heart program. So in 1980, when the hospital changed its bylaws to require board certification in the physician's area of practice, Ruiz was grandfathered in.

Drs. Michael Williamson and Donald Eubanks were among the first to notice problems with Ruiz's outcomes because they are cardiologists, the doctors who diagnose heart problems and choose candidates for open-heart surgery.

By 1980, they determined, surgeons Myron Wheat and Thomas Deal had done 223 heart operations with 10 deaths, for a mortality rate of 4.5 percent. Ruiz and his associates had completed 297 surgeries with 36 deaths, for a mortality rate of more than 12 percent.

It appears that the cardiologists did what they could to channel patients away from Ruiz to the other heart team. Ruiz's referrals started falling off, and he became anxious.

One morning in January 1981, Ruiz cornered then-medical director Norman Tarr in the parking lot and demanded he do something. Now, he said, it wasn't just the cardiologists interfering with his business. Nurses also were warning patients away.

If something weren't done, he said, he'd sue.

Some in Tarr's position might have investigated why the cardiologists and nurses were so concerned about Ruiz. But Tarr, instead, asked the nursing director to track down the leak in her ranks.

The hospital put out a newsletter to all nurses reminding them that they were not to recommend _ nor warn against _ physicians. And the president of the medical staff, Dr. William R. LaRosa, posted a reminder that it was up to the patient's family doctor to make referrals, without interference from others (such as cardiologists).

No matter what they were told, the cardiologists couldn't pretend everything was okay. They decided to gather the data they needed to make their case.

When they finished, they had an explosive report. They had to find a forum to present it in a way that would trigger some action.

Patient mortality rate

was "unacceptable'

The event they chose was a meeting of the hospital's highest officials and its heart doctors _ including Ruiz _ on July 20, 1983, at the exclusive Carlouel Yacht and Country Club in Clearwater Beach.

With a screen and slides, cardiologist Eubanks showed that in 1980-83 "Team A" _ which everyone knew was surgeons Wheat, Deal and Richard Murbach _ had a mortality rate of 5.5 percent, while that of "Team B" (Ruiz and associates) was 11.4 percent.

Administrators would testify later that they were afraid to take the statistics at face value. Maybe Ruiz was right when he insisted that he took only the toughest cases. Maybe he just had a run of bad luck.

So they asked Gary Lyman, a biostatistics expert at the University of South Florida (USF), to check over the data.

In August 1983, Lyman reported to medical director Tarr that most hospitals' mortality rate for coronary bypass was less than 5 percent and that a rate of more than 10 percent was considered unacceptable. Ruiz's mortality rate was significantly greater than that of others, Lyman said, and there was sufficient cause for concern to probe more deeply.

On Oct. 27, 1983, the president of the hospital and its physician directors authorized a broader study. But a memo by Dr. Tarr that describes the meeting shows those attending had an overriding concern for secrecy:

"The group was uniformly concerned that (the) mortality statistics would be made public information . . . , particularly since the data had not been objectively reviewed . . . , and because of the potential bad publicity and schisms within the medical staff which this information might produce."

After studying 1,888 heart surgeries by 10 surgeons at the hospital between 1975 and 1983, Lyman concluded that one surgeon had a "significantly greater" death rate than the others _ in fact, more than double. And there appeared to be no excuse for this death rate because he took the least risky cases. Adjusting for this, the surgeon's actual death rate for his nine years at Morton Plant, Lyman reported, was 16.8 percent.

The surgeon could only be Ruiz. No one else had been doing bypass operations at Morton Plant for nine years.

At a meeting of the former presidents of the medical staff on Oct. 30, 1984, Tarr presented the results. Instead of taking immediate action to protect patients, such as temporarily restricting Ruiz's surgical privileges or placing a monitor in the operating room with him, the group decided to have Lyman's second report evaluated by a university surgery department and a professional association of surgeons.

In other words, they voted to study the study.

Tarr's memo of that meeting contains some questions that were raised, along with the answers produced by the group.

"Who should have access to this data? Cardiovascular surgeons? Cardiologists? Entire staff?"

"Answer: Nobody. the information is to remain confidential, under the guardianship of Dr. Tarr."

"How to protect "confidentiality'? From gossip? Rival programs? Others?"

"Answer: By not disclosing any information until the final evaluation and determination of further action is made."

"How to keep from the press?"

"Answer: This is to remain confidential."

Complaints against

Ruiz intensified

In the days that followed, complaints intensified. Operating room nurses griped to heart surgeon Richard Murbach, and Murbach raised Cain to the chairman of surgery, who in turn went to Tarr on Nov. 1, 1984.

Tarr knew Ruiz had lost four patients since Sept. 21, records show. His mortality rate for 1984 appeared unreasonably high.

Still, Tarr would not convene an investigative committee unless someone put a complaint in writing. No one would.

In February 1985, Tarr tried to arrange for the Thoracic Surgery Society, a national organization of heart surgeons, to review the situation. But the society could not act unless all Morton Plant's heart surgeons signed a release of liability.

Ruiz and two others refused.

A few weeks later, operating room supervisor Cheryl Young passed on a request from three nurses and a pump technician: They didn't want to scrub with Ruiz anymore.

"The number of deaths occurring with Dr. Ruiz's cases has presented (an) uncomfortable feeling among the open-heart room staff," Young wrote to her supervisor, Mary Wilmarth. "(His mortality rate) and his speed during his cases has brought about apprehension and concern within the team."

The nurses were told to keep scrubbing.

And they did, until May 28, 1985. On that day, after nurse Lauren Burch watched yet another of Ruiz's patients die, she cast aside caution and wrote a memo to her superiors and Tarr.

Ruiz, she said, had handled the delicate internal mammary artery _ the one used for the bypass _ roughly with forceps and a too-large clip. He sutured the vessel into the coronary artery, she said, without first making sure there was blood flow through it. That's critical.

She questioned him about it, she said, but he wasn't concerned. Even though the patient wasn't doing well, she said, Ruiz went ahead and closed the incision.

When the patient's heart failed, Burch wrote, Ruiz was extremely reluctant to reopen the chest for cardiac massage and in fact didn't do so until the anesthesiologist absolutely insisted. Even then, she wrote, Ruiz didn't use the technique that other surgeons used.

The patient, Russel B. Rogers, was failing. Ruiz sent his nurse out to tell Margaret M. Rogers that her husband probably wouldn't survive. When it was over, Mrs. Rogers later would testify, the surgeon told her that he had no explanation for her husband's death.

It was simply, he said, an act of God.

Burch's memo went up the chain of command to Tarr. He put together a panel of doctors to study Ruiz's work and to decide what to do with him.

Tarr asked Ruiz to voluntarily quit operating. He refused.

Ten days later, another patient died.

A patient's relative

asked questions

Shortly afterward, Morton Plant administrators chose general surgeon John T. Goodgame to head the committee that would look into the charges against Ruiz. The Cardiovascular Mortality Committee compared all the heart surgeons' mortality rates for the past 18 months.

What they discovered was shocking.

In 1984, they found, the overall mortality for open-heart procedures was 5.9 percent. But Ruiz's death rate was 18 percent. When they took him out of the equation, Morton Plant's mortality rate fell to 4 percent.

The first half of 1985 looked even worse. Ruiz's mortality rate was 37 percent.

Committee members then studied the 24 cardiac-surgery deaths. They decided nine were "potentially preventable," and of those, six were patients of Ruiz.

Morton Plant President Duane T. Houtz went to Ruiz's office June 18, 1985, to ask him to quit doing heart surgery. Ruiz refused. The next day, Houtz suspended Ruiz's cardiac surgery privileges.

Ruiz appealed. A hearings committee headed by Byron Smitherman, an internist, heard from the Goodgame committee and then heard from Ruiz. After three meetings that went late into the night, the committee ruled against Ruiz.

The ruling left Ruiz in limbo. He was still on the staff of Morton Plant, and he still could do some kinds of surgery, but he no longer could perform open-heart operations.

Meanwhile, Rogers' daughter-in-law, Trudi Rogers, then a nurse at Mease Hospital, heard a rumor from a friend at Morton Plant that Ruiz had been suspended and that it had something to do with the Rogers case. Trudi and her husband, Dan, talked it over with Dan's brother and sister, and they decided to investigate without worrying their mother about it.

On June 26, 1985, Dan Rogers showed up at the hospital asking questions, and risk manager Leonard Gorman was sent out to deal with him. Gorman promised to check on the matter and get back to him.

Worried, Gorman asked hospital president Houtz what to do. According to the memo, Houtz told him to talk to a hospital attorney in Palm Beach, who would coach him. On July 1, court records show, Gorman called Dan Rogers and told him:

"In checking into the matter of the suspension of Dr. Ruiz, I have learned that he has not been suspended. Where that rumor came from I have no idea."

Some of Ruiz's activities had been curtailed, Gorman said, and "certain areas of concern" were being looked into. But Ruiz's staff privileges were still in effect, Gorman said, "and he is still very much on the staff. In fact, he performed three very serious operations this

past Friday."

Gorman told Rogers it might be months before a final ruling.

Dan Rogers went away from that conversation reassured. In an interview with the St. Petersburg Times, he said he inferred that whenever there was a surgical death, an investigation automatically was conducted, but that it was a mere formality.

"I walked out of there feeling like, with a police shooting, it's reviewed, and that's it," he said.

Gorman apparently didn't enjoy the episode. In his memo to the hospital president, he said that if any more conversations with the Rogers family were necessary, he'd rather someone else conduct them.

Morton Plant's attorney, Joe Park, said recently that the Gorman script was accurate.

"Yes, we were cautious about what we said. Because who's going to sue you first? If you say too much, the doctor's going to sue you. If you say too little, the family's going to sue you for covering up.

"I think Mr. Gorman told the truth," Park said.

"If we were going to cover this up, we could have said (nothing more than), "Oh, no, he's still on staff,' " Park said. "We went to some degree to let these people know we were looking into this."

Dan Rogers vehemently disagrees. He said the conversation with Gorman allayed his fears to the point that when he needed a heart checkup two years later, he drove all the way back from Orlando to Clearwater so he could go to Ruiz.

Ruiz sues hospital

to try to clear name

That would have been the end of the whole episode if Ruiz had kept quiet. But he was having money trouble. He had to clear his name in order to move to another hospital.

So he sued Morton Plant, charging that its review process was unfair.

During three days of testimony in June 1987, anesthesiologists Charles Kottmeier and James Dabney testified they had told Ruiz they were concerned about his technique and results.

And an authority on cardiac surgery, Dr. Benson B. Roe of California, said Ruiz must have made errors in surgery because there was no other explanation for the rash of deaths. Whatever the mistakes were, he said, Ruiz revealed nothing about them in his operative reports.

However, Ruiz's lawsuit had a lot going for it: Morton Plant couldn't defend itself well because, by law, all peer-review records are secret.

Pinellas Circuit Judge Helen Hansel went with Ruiz, on a technicality. She told the hospital it should have had a cardiac surgeon on its hearings committee, and ordered Morton Plant to restore Ruiz's cardiac surgery privileges. After that, if they wanted to, Morton Plant officials could go through the suspension process again.

As soon as he was restored to full privileges, Ruiz resigned from Morton Plant and moved his business to Clearwater Community Hospital. But he wasn't satisfied. He brought an anti-trust suit in federal court in Tampa, charging that six doctors at Morton Plant had conspired to ruin his reputation so they could steal his business.

He named the doctors who he thought had done the most to prod Morton Plant's administration to take action against him: Cardiologists Eubanks, Williamson and Paul L. Phillips, and surgeons Wheat, Deal and Murbach.

They had no choice but to pull out the USF study and other mortality data to defend themselves. One case _ that of Russel Rogers _ was mentioned by name. After a week of damaging testimony, Ruiz dropped the suit.

The St. Petersburg Times covered the trial. On March 25, 1988, Margaret Rogers picked up the paper and learned what had happened to her husband nearly three years before.

"It hit like a bomb," she told a reporter at the time. "I started to shake, and I couldn't stop shaking."

The Rogers family hired attorneys Tom Masterson and Jeff O'Brien to sue Ruiz and the hospital for malpractice. They ran into a wall: Florida's two-year statute of limitations.

Mrs. Rogers should have filed her suit within two years of her husband's 1985 death, Pinellas Circuit Judge Fred Bryson said. Case dismissed.

Now, however, the 2nd District Court of Appeal in Lakeland has breathed new life into the case. In a complex but unanimous ruling Dec. 13, the three-judge panel ordered that the statute of limitations could be set aside when there is evidence of "fraudulent concealment."

Wrote Judge James Edwin Lehan: "There is a question of fact as to whether both Dr. Ruiz and the hospital improperly covered up, and prevented plaintiff from knowing of, the negligence with which those defendants are charged."

The judges voted to let a jury decide.

Morton Plant insists

it never told a lie

Morton Plant officials say they always scrupulously told the truth about what was happening. But was it the whole truth?

Consider what happened in September 1986, when the now-defunct St. Petersburg Evening Independent published a story about death rates for open-heart surgery. According to Medicare records, the story said, Morton Plant's 1984 mortality rate was somewhat above the national average. The reporter asked Morton Plant officials for a comment.

They could have said, "Well, the reason our death rate was higher in 1984 was that we had one surgeon with a mortality rate of 18 percent. We took action against him, and he's no longer doing the surgery."

Instead, Morton Plant spokesman Paul Gramblin told the reporter: "We don't feel a death rate is an indication of the quality of care in a particular hospital."

The statistics shouldn't be used in rating hospitals, he said then, because they don't take into consideration risk factors such as advanced age and poor health.

Last week, the Times asked Gramblin why he cast doubt on the data six years ago instead of admitting they were right. He said he didn't remember whether he knew about Ruiz at the time.

Nowadays, Ruiz operates on clogged leg and neck vessels at Clearwater Community. On the advice of his attorney, he declined an interview.

But he said as soon as he completes a refresher course, he will resume open-heart surgery. He declined to name the hospital.

Clearwater Community has no open-heart capability. Gramblin said it's safe to assume Ruiz won't be coming back to Morton Plant.

Ruiz's attorney, Stephen H. Sears of Tampa, has filed for a rehearing of the case before the appeals court. If that is turned down, he said, he'll take it to the Florida Supreme Court.

Considering that, he said, it's premature for the Times to write about the case.

Morton Plant attorney Joe Park said it's in a hospital's interest to move against a physician as quickly as possible in a case such as this, because the hospital is exposed to lawsuits from patients who are harmed. But it also must be sure of its facts, especially when the complaints mainly are coming from competitors.

"Nobody expects the hospital to be portrayed as a hero in this situation," Park said. "I just hope somebody is going to get a view of what a quandary the hospital _ any hospital _ is in . . . .

"You're darned if you do, and darned if you don't."

The Rogers family has little patience with such arguments. What the hospital did to them, sons Dan and Phil said, borders on criminal negligence.

"We're angry and frustrated," Phil said. "We feel a lit bit like David did against Goliath.

"It's been a long, drawn-out kind of nightmare."

Morton Plant's attorney angrily rejected the suggestion that the hospital conducted a coverup.

But the depositions of all the nurses and doctors in this case remain sealed, at the request of the hospital.

And until last week, when they were contacted by a reporter, the families of Marguerite Wertz, Charlene Corrine Evans, Arthur Kowal, Bernadine Luedke and Theodore Lialios never knew their deaths had been termed "potentially preventable."

The case of Dr. Javier Ruiz

1975 Morton Plant begins its open-heart surgery program, with Dr. Javier Ruiz in charge.

1980 Hospital cardiologists become aware that Ruiz's mortality rate is higher than that of others.

1983 July 20 - Meeting at Carlouel Yacht Club on Clearwater Beach among the hospital's current and former leaders. Study shows that one of Morton Plant's surgeons has twice the mortality rate of the others. (Documents show those attending know it is Ruiz.) They vote to seek further analysis.

Aug. 25 - USF expert reports to the hospital that data indicate there is a surgeon with a significantly greater mortality rate than others.

Oct. 27 - Hospital officials convene to discuss the problem. Administrator's memo says the group is concerned about bad publicity if the statistics get out.

1984 September - USF expert presents in-depth study documenting that Ruiz's mortality rate is more than double the others', even though his patients were lower-risk. Tarr locks the study in his office.

October - Operating room nurses complain about Ruiz's surgical technique to another surgeon, Dr. Richard Murbach, who passes the complaints to Dr. Norman Tarr, medical director. Murbach complains again to Tarr. The medical director reassures him that appropriate steps are being taken.

Nov. 1 - Tarr learns from chief of surgery that Ruiz has had four recent operating-room deaths.

Late in the year, early in 1985 - Operating room nurses tell supervisors they no longer want to work with Ruiz. The supervisors tell Tarr. The nurses are ordered to go on working with Ruiz.

1985 April - Operating room supervisor writes a memo about Ruiz's excessive death rate. Her supervisor gives it to Tarr.

May 28 - Patient Russel B. Rogers dies during open-heart surgery with Ruiz. The surgeon tells Rogers' farmily that the death was inexplicable, an act of God.

May 31 - Nurse Lauren Burch writes memo saying Ruiz botched the operation. Memo says she informed her supervisors, including Tarr. He shows the memo to hospital president Duane Houtz and acting chief of surgery, then locks it away.

Later that day - Tarr meets with Ruiz and suggests he voluntarily suspend his heart surgery. Ruiz refuses. Tarr appoints four doctors to review the case.

June 9 - Another of Ruiz's patients dies.

June 18 - Armed with a negative report from the panel, hospital president Houtz asks Ruiz to voluntarily suspend surgery. He refuses. Houtz hands him a letter summarily suspending him.

June 19 - Suspension takes effect. Ruiz contests it.

June 26 - Dan Rogers, son of the patient who died May 28, comes to the hospital saying he has heard a rumor that Ruiz was suspended and that it had something to do with his father's operation. What he is told leads him to believe that the rumor is unfounded.

July 1 - Hospital president Houtz sends Ruiz a letter saying six of his patient deaths between January 1984 and June 1985 were "potentially preventable."

1986 July 17 - Department of Professional Regulation finds "insufficient evidence" to justify disciplinary action against Ruiz.

1987 April - Still unaware of Ruiz's problems, Dan Rogers goes to him for a cardiac evaluation.

June - Ruiz goes to court, saying his competitors ruined his practice. The other doctors defend themselves by revealing Ruiz's mortality rate. The Rogers family reads newspaper accounts and learns the truth about Ruiz's suspension for the first time.

1988 April - Ruiz drops suit.

1989 Jan. 24 - Rogers family sues Ruiz and hospital. Judge throws it out, citing two-year statute of limitations.

1991 Dec. 13 - Appeals court in Lakeland overturns the decision, saying the two-year limit doesn't apply when there are serious questions about whether the defendant delayed justice by concealing the truth.